The Constitutional Court of Ukraine delivered the Decision upon constitutional complaints of Dmytro Krupko on the compliance of Articles 81.1 and 82.1 of the Criminal Code of Ukraine with the Constitution of Ukraine, Volodymyr Kostin, Oleksandr Melnychenko on the compliance of Article 82.1 of the Criminal Code of Ukraine with the Constitution of Ukraine and upon the constitutional complaint of Viktor Hohin on the compliance of Article 81.1 of the Criminal Code of Ukraine with the Constitution of Ukraine (hereinafter referred to as the Code) (the case regarding review of the sentence of a person sentenced to life imprisonment).
By this Decision, the Court found Article 81.1, Article 82.1 of the Code as such that do not comply with the Constitution of Ukraine (are unconstitutional), since they had made it impossible to apply them to persons sentenced to life imprisonment.
The Decision of the Constitutional Court of Ukraine is based on documents of international law, in particular, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter referred to as the Convention), the Charter of the United Nations 1945, the Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights of 1966, International Covenant on Economic, Social and Cultural Rights of 1966, Resolution of the Committee of Ministers of the Council of Europe on the Treatment of Long-Term Prisoners of 17 February 1976 (76)2, the Annex to the Recommendation Rec(2003)22 of the Committee of Ministers of the Council of Europe on conditional release (parole), as well as the case law of the European Court of Human Rights, the Court of Justice of the European Union.
In the Decision, the Constitutional Court of Ukraine took into account the jurisprudence of the bodies of constitutional jurisdiction of European countries - Germany, Hungary, Lithuania, Poland, Romania, as well as Western academic doctrine, in particular, the monograph: Dirk van Zyl Smith and Catherine Appleton. Life Imprisonment: A Global Human Rights Analysis. Cambridge (Massachusetts): Harvard University Press, 2019.
In its Decision, the Constitutional Court of Ukraine notes that human being is a highest value of Nature, whence come the inherent human rights and freedoms, that is, those that are natural. Human dignity as a source of all human rights and freedoms and their basis is one of the fundamental values of the Ukrainian constitutional order. Article 3 of the Constitution of Ukraine implies the duty of the state to ensure the protection and defense of human dignity. This is the responsibility of all public authorities. The Verkhovna Rada of Ukraine, when passing laws, must guarantee the proper protection and realiыation of human rights and freedoms, which is one of the conditions for ensuring human dignity as a natural value. In turn, courts must interpret legal norms in such a way that their application does not harm human dignity.
The Court stated that the consequence of Ukraine's accession to the European human rights order through ratification of the Convention is that the introduction and application of criminal penalties in the domestic legal order cannot be carried out only in accordance with domestic criteria of criminal justice. In this regard, it is the duty of the state to be guided also by international human rights standards, in particular those relating to the human dignity of persons subject to punishment.
Having regard to the finding by the European Court of Human Rights of a violation by Ukraine of Article 3 of the Convention on the ground that a sentence of life imprisonment is a sentence without the prospect of release, and given that Article 28.2 of the Constitution of Ukraine is identical to Article 3 of the Convention, the Constitutional Court of Ukraine considers that the sentence of life imprisonment established by the Code as a sentence without prospect of release is incompatible with the Constitution of Ukraine.
The Constitutional Court of Ukraine points out that life imprisonment as a type of criminal punishment does not contradict the provisions of Articleы 3.1, 23, and 28.2 of the Constitution of Ukraine, if a person sentenced to such punishment is guaranteed the right to early release from serving such punishment/or replacing the unserved part of the sentence with a milder sentence.
At the same time, life imprisonment of a person without further possibility of his/her release means equating the term of life imprisonment with imprisonment until the end of natural human life, and therefore denies not only the purpose of punishment but also the very essence of human dignity, calls into question its absolute nature and violates the positive duty of the state to protect human dignity, and therefore does not comply with Articles 3.1, 23, 28.2, and 63.3 of the Constitution of Ukraine.
The Constitutional Court of Ukraine notes that in order to implement Articles 3, 23, and 28 of the Constitution of Ukraine and bring the Code into line with the Constitution of Ukraine, as well as in view of the international commitments of Ukraine undertaken through membership in the Council of Europe, the task of the Verkhovna Rada of Ukraine is to legislate a realistic prospect of releasing persons sentenced to life imprisonment from further serving such a sentence by regulating the procedure for replacing life imprisonment with a milder punishment or parole. It should be borne in mind that the replacement of the unserved part of the sentence in the form of life imprisonment with a milder punishment should not be a prerequisite for parole. In addition, the Constitutional Court of Ukraine considers that a person sentenced to life imprisonment should also, if necessary, be provided with unimpeded provision of free legal aid in order to properly prepare the required documents and protect his/her interests during the consideration of the issue of parole and/or replacement of the unserved part of the sentence with a milder sentence through judicial review.
The Constitutional Court of Ukraine obliged the Verkhovna Rada of Ukraine to immediately bring the normative regulation established by Articles 81 and 82 of the Criminal Code of Ukraine into compliance with the Constitution of Ukraine and the respective Decision.